IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Bonnie R. Mallit, :
Petitioner :

:

v. :

: Unemployment Compensation : Board of Review, : No. 205 C.D. 2019 Respondent : Submitted: Ju ly 5 , 2019

BEFORE: HONORABLE PATRICIA A. McCULLOUGH

, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE ELLEN CEISLER

, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE COVEY FILED: August 8, 2019

Bonnie R. Mallit (Claimant) petitions this Court, pro se, for review of

the Unemp loyment Compensation (UC) Board of Review’s (UCBR) December 19,

2018 order affirming the Referee’s decision denying her UC benefits under Section

402(b) of the UC Law (Law). 1 Claimant essentially presents one issue for this

Court’s review: whether the UCB R erred by determining that Claimant did not have a

necessitous and compelling reason for leaving her job. 2 After review, we affirm.

The facts of this ca s e are undisputed. C laimant was employed as a

medical assistant for Douglas D. Fletcher, M.D. (Emplo yer /Dr. Fletcher ) from

1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended , 43 P.S. §

802(b) (relating to voluntary separation without cause of a necessitous and compelling nature).

2 Claimant presented two issues in her “Statement of the Questions Involved:” (1) whether
Claimant’s employer addressed her concerns; and (2) whether Claimant presented sufficient

evidence that she had a necessitous and compelling reason for voluntarily separating from her

employment. Claimant Br. at 6. These issues are subsumed in the Court’s rephrasing of the issue

and will be addressed therein.2

August 6, 2006 to July 30, 2018. 3 Claimant’s voluntary resignation stem med from an

incident that occurred on July 30, 2018 at approximately 1:00 p.m.

, when Employer’s

office manager Joyce Maiure (Maiure) informed Claimant that Mai ur e inadvertently

reported to Employer’s payroll company that Claimant worked from 9:00 a.m. to 5:00

p.m. on July 13, 2018

, rather than from 9:00 a.m. to 12:30 p.m. which Claimant

act u ally worked. 4 Claimant became upset w hen Mai u re asked Claimant how she

pr eferred Employer to correct the four

- hour overpayment, either by taking the pay

from Claimant’s vacation leave or from her next paycheck.

Later that same day

, Claimant asked Ma iu re if she could take time off

without pay from October 2 to October 17, 201 8

, whe n Dr. Fletcher planned to be out

of the office. Ma iu re told Claimant she would have to exhaust her vacation days

before she could take unpaid time off, but they could discuss it as the time got closer.

Then, a t 4:15 p.m. that day

, despite that Clai mant was scheduled to work until 5:00

p.m., Claimant removed her personal belongings, loudly announced that she was

“done,” and left. Certified Record ( C.R. ) Item 12, Notes of Testimony, October 23,

2018 (N.T.) at 7 ; see also N.T. at 9

.

Thereafter , Claimant applied for UC benefits claiming she suffered

stress due to a hostile work environment in which unwritten vacation policies

changed without warning. See C.R. Item 2, Internet Initial Claims; see also C.R. Item

5, Claimant Questionnaire. On Aug ust 31, 2018 , the Indiana UC Service Center (UC

Service Center) concluded that Claimant was ineligible for UC benefits under Section

402(b) of the Law because she “has not shown a necessitous and compelling reason

3 Claimant worked for Employer part

- time from August 6, 2006, and began working full

time in approximately December 2006. See C ertified Record Item 12, Notes of Testimony, October

23, 2018 (N.T.) at 4

- 5.
Claimant and an office manager were Dr. Fletcher’s only employees.

4 Claimant had Employer’s permission to leave a t 12:30 p.m. on July 13, 2018. See N.T. at

17

.3

for quitting.” C.R. Item 8, UC Service Ce nter Determination at 1. Claimant

appealed, and a Referee hearing w as held on October 23 , 201 8 . On October 25,

2018 , the Referee affirmed the UC Service Center’s determination because Claimant

did not establish a necessitous and compelling reason for qui tting. Claimant appealed

to the UCBR. On December 19 , 2018, the UCBR adopted the Referee’s findings and

conclusions

, and affirmed the Referee’s decision. Claimant appealed to this Court. 5

Claimant argues that the UCBR erred by concluding she failed to prove

she had a necessitous and compelling reason for voluntarily quitting her job.

Claimant specifically contends that Employer never resolved the communication

concerns she raised in June 2018.

Section 402(b) of the Law states that an employe e shall b e ineligible for

compensation for any week “[i] n which h [er] unemployment is due to voluntarily

leaving work without cause of a necessitous and compelling nature [.]” 43 P.S. §

802 (b). This Court has explained:

Whether a claimant had cause of a necessit ous and compelling nature for leaving work is a questi on of law subject to this Court’ s review. A claimant who voluntarily quits h [er] employment bears the burden of proving that

necessitous and compelling reasons motivated that decision.

In order to est ablish cause of a necessitous and compelling

nature , a claimant must establish that (1) circumstances existed that produced real and substantial pressure to terminate employment, (2) like circumstances would compel a reasonable person to act in the same ma nner, (3) the claimant acted with ordinary common sense, and (4) the claimant made a reasonable effort to preserve her employment.

5 “Our scope of review is limited to determining whether constitutional rights were violated,

whether an error of law was committed, or whether the findings of fact were unsupported by

substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704.” Turgeon v.
Unemployment Comp. Bd. of Review , 64 A.3d 729, 731 n.3 (Pa. Cmwlth. 2013).4

Middletown Twp. v. Unemployment Comp. Bd. of Review , 40 A.3d 217, 22 7

- 28 (Pa.

Cmwlth. 2012) (citations omitted).

Pennsylva nia law is clear that “[m]ere dissatisfaction with one’s working

conditions does not constitute cause of a necessitous and compelling nature for

terminating one’s employment.” Brunswick Hotel & Conference Ctr., LLC v.

Unemployment Comp. Bd. of Review

, 906 A.2d 657, 660 (Pa. Cmwlth. 2006).

Moreover, “[p] ersonality conflicts, absent an intolerable work atmosphere, do not

amount to a necessitous and compelling cause for leaving one’s employment.” Wert

v. Unemployment Comp. Bd. of Review , 41 A.3d 937, 940 (P a. Cmwlth. 2012). This

Court has ruled that r esentment of reprimand and personality conflicts may make a

work environment uncomfortable, b ut not necessarily intolerable. Ann Kearney

Astolfi DMD PC

. v. Unemployment Comp. Bd. of Review , 995 A.2d 1286 (Pa.

Cmwlth. 2010).

At the Referee hearing, Claimant testified that she had been a model

employee for nearly 12 years. Relative to the July 30, 2018 incidents, Claimant

claimed that she believed she was only paid for working 9:00 a.m. to 12:30 p.m. on

July 13, 2018, so she did not owe Employer four hours as Ma i ure claimed.

R egarding taking time off without pay , Claimant stated that Employer

did not have a written vacation policy, and it was never previously communicated to

her that she had to use her vac ation time first, since taking unpaid leave “ was fine for

the past 11 years[.]” N.T. at 6 ; see also N.T. at 11

. Claimant admitted she had

vacation time she could have used. See N.T. at 8. Claimant r ecalled informing Dr.

Fletcher in June 2018 about poor communication in the office

, and he asked her to

write a letter about her experiences, but nothing changed thereafter. Claimant

introduced copies of text messages between her and Dr. Fletcher that reflect ed

Claimant’s intention to return to work on July 31, 2018, and Dr. Fletcher’s response5

that, since she chose to leave, she should not return. See N.T. at 9

- 10 ; see also N.T.

Ex. C

- 2 at 2.

Dr. Fletcher expounded that, on June 8, 2018, an incident occurred

between Mai u re and Claimant that led Claimant to “loudly stat[e] that this was the

last day she was going to work and [she] walked out” of the office while patients

were present. N.T. at 14. He explained that he asked both ladies to write down what

occurred , discussed the matter with each of them

, and warned Claimant that

abandoning her duties was unacceptable. He reported that Claimant returned to work

after that incident but

, on July 30, 2018

, again raised her voice in front of patients and

walked out.

Based upon the evidence presented at the he arings, the Referee

concluded:

[ Claimant ] fully admitted to walking off the job 45 minutes

prior to the end of her shift [] on July 30, 2018. [ Claimant ] provided two things that occurred on her last day of work, that ultimately led to her decision to quit, but [] insisted that it was a history of poor communication in the office [] that had led up to that decision. While the Referee understands

that [ Claimant ] may have spoken to [ Employer ] in June

2018 [] regarding what [ Claimant ] perceived as poor office

com munications, by [ Claimant ’s] own admission, she had

not advised [Dr. Fletcher] that the communication issues continued, or made any other attempt to complain that she was being mistreated by [Mai u re]

. [ Claimant ] argued that she attempted to offer to retur n to work the day after she left, and was prevented from doing so by [Dr. Fletcher]

. [Dr. Fletcher] explained that he had allowed [ Claimant ] to

return to work the first time she had walked off the job, advising her that it was unacceptable to walk out on patients or engage in an argument, or to raise her voice, in the patient ’ s presence, and could not tolerate allowing
[ Claimant ] to return to work yet again, after she had walked off the job on July 30, 2018. The Referee finds that [Dr. Fletcher] was compl etely [with] in [his] right to decide not

to let [ Claimant ] return to work, as [ Claimant ] had quit at 4:15 p [.] m [.] , on July 30, 2018, when she walked off prior6 to the end of her shift. The Referee finds that based on
[ Claimant ’s] reasoning for quitting he r job, [ Claimant ] has failed to establish necessitous and compelling cause for quitting, and benefits must be denied under Section 402(b)

of the [L] aw.

Referee Dec. at 3.

On appeal, the UCBR adopted the Referee’s findings and conclusions,

and affirmed t he Referee’s decision , adding the following findings: “[Claimant] did

not tell [Mai u re] that [she] believed she only got paid until 12:30[,]” and “[Claimant]

voluntarily quit employment because of communication issues.” UCBR Order at 1.

The UCBR conclude d:

In her appeal, [C laimant ] argues that [Mai u re] gave false

info r mation. The [UCBR] determines credibility. The
[UCBR] resolves all conflict in testimony in favor of
[E mployer ]

. [C laimant ] also argues that [Dr. Fletcher] did not say what he did to reso lve the issues in June 2018. [Dr. Fletcher] testified that he had [C laimant ] and [Mai u re] write letters and discussed things individually with [C laimant ]

and [Mai u re]

. [C laimant ] loudly walked out on July 30, 2018 and quit, and this was not [Dr. Fletcher ’s] fault.
Furthermore, [C laimant ] did not act reasonably in trying to preserve her employment. [C laimant ] accuses [E mployer ] of miscommunication, but [C laimant ] admitted at the hearing that she too did not communicate. [C laimant ] did

not tell [Mai u re] that [C laimant ] believed she only got paid

until 12:30.

UCBR Order at 1.

A ll credibility determinations are made by the [UCBR]

. The weight given the evidence is within the discretion of

the factfinder

. The [UCBR] is the ultimate factfinder. The

[UCBR] d etermined that Claimant voluntarily left h [er] employment [without a necessitous and compelling reason]

. A review of the record reveals that the [UCBR’s] findings were supported by substantial evidence.7

Spadaro v. Unemployment Comp

. Bd. of Review , 850 A.2 d 855 , 860 (Pa.

Cmwlth. 2004) (citations omitted). B ecause Claimant did not produce credible

evidence that “ circumstances existed that produced real and substantial pressure [for

her ] to terminate [her] employment ,” Middletown Twp. , 40 A.3d at 22 8 , the UC BR

properly concluded that she is in eligible for UC benefits pursuant to Section 402(b)

of the Law.

For all of the above reasons, the UCBR’s order is affirmed.

___________________________ ANNE E. COVEY, JudgeIN THE COMMONWEALTH COURT OF PEN NSYLVANIA

Bonnie R. Mallit, :
Petitioner :

:

v. :

: Unemployment Compensation : Board of Review, : No. 205 C.D. 2019 Respondent :

O R D E R

AND NOW, this 8 th day of August , 201 9

, the Unemployment

Compensation B oard of Review’s December 19, 2018 order is affirmed.

___________________________ ANNE E. COVEY, Judge